A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Thursday, 31 May 2012

Article 10(1) of the International
Covenant on Civil and Political Rights states:

All persons deprived of their liberty
shall be treated with humanity and with respect for the inherent dignity of the
human person.

Paragraph 3 of article 10 says

The penitentiary system shall comprise
treatment of prisoners the essential aim of which shall be their reformation
and social rehabilitation.

It is hard to rejoice about a 50-year
sentence being imposed on a 65-year old, no matter how heinous and terrible the
crimes he committed may have been.

Fifty years is not the highest sentence
ever imposed by an international criminal tribunal. A few years ago, the same
Special Court for Sierra Leone imposed a sentence of 52 years. But none of the
other tribunals has ever imposed such a high sentence. Not even close.

The judges of the Special Court will
explain that they need to do this because they cannot impose a sentence of life
imprisonment, which seems to be excluded by the Statute of the Special Court.
At the International Criminal Tribunal for the former Yugoslavia, this option
is available, although it has only rarely been used.

At the International Criminal Court
(which has never yet imposed a sentence), there is a maximum sentence of 30
years. The judges may also impose a life sentence “when justified by the
extreme gravity of the crime and the individual circumstances of the convicted
person”. However, the sentence is subject to a mandatory review after 25 years.

What is troubling about the 50-year
sentence given to Charles Taylor is the implicit message that he should never
be released. There is provision in the Rules of Procedure and Evidence for a
reduction in the sentence at some point in the future. But nothing in the
Statute of the Court or in the Rules gives Charles Taylor the right to seek
reduction in the sentence at any point in time.

There is the haunting precedent of
Rudolf Hess, the only Nazi defendant to be given a life sentence at Nuremberg.
Of course, the majority were sentenced to death. But some of the Nazi villains,
like Albert Speer, were given sentences of 20 years. Hess server more than
thirty years of his sentence, unable to achieve any form of release because of
differences of opinion at the political level. He tried, unsuccessfully, to
bring his case to Strasbourg. He finally committed suicide.

The Special Court for Sierra Leone could
have achieved the same result with a sentence of 25 or 30 years. Indeed, it is
for this reason that the other international criminal tribunals, as well as
justice systems of most countries, do not generally impose custodial sentences with
fixed terms greater than 25 or 30 years.

As article 10 of the Covenant recalls, a
detention regime must never lose sight ofthe ‘inherent dignity of the human person’. The ‘essential aim’ must be
‘reformation and social rehabilitation’. If we fail to honour his human
dignity, we damage our own. There is no reason why Charles Taylor cannot be
reformed and rehabilitated. This must not be forgotten as the Court attempts to
find a sentence that adequately reflects the horror of the crimes that he
committed.

Friday, 25 May 2012

Yvonne McDermott sends a very helpful and complete account, reproduced below. As the conclusion indicates, the colleagues of Judge Sow decided that his rather frustrated and ineffective attempt to make a short statement at the end of the delivery of the summary of the Taylor judgment makes him 'unfit' to be a judge. They cannot, however, remove him from office. They can only recommend that this be done by the Secretary-General of the United Nations, and this is what they have done. Pending a determination by the Secretary-General, they have suspended him from sitting. The authority for this is Rule 24(iii), which states: 'The Judges shall meet in Plenary to... (iii) Decide on matters relating to the internal functioning of the Chambers and the Special Court.' Suspending a judge from sitting in a case, when the Rules themselves say that he is required to be present at every hearing, seems an extraordinarily serious measure to be based upon such a vague provision.

From the sentencing hearing transcript:"Before proceeding today, it
gives us no pleasure to have to place on record some explanation for the
extraordinary situation which occurred at the end of the previous
sitting of the Trial Chamber on 26th of April, 2012, on which date the
Trial Chamber delivered its summary judgement.On that date, at the
conclusion of the proceedings, the Alternate Judge, without any notice
to the Trial Chamber, proceeded to deliver his own opinions from the
bench on the judgement that had just been delivered on these proceedings
and on the Special Court itself. What the Alternate Judge did was in
contravention of the agreement, the Statute, and the Rules which govern
this Court and amounted to misconduct. The purpose of attaching an
Alternate Judge to a Trial Chamber is that he can be designated to
replace a sitting Judge if that Judge is unable to continue sitting. See
Article 12 of the Statute. No such designation has been made in the
present case. Further, during the proceedings, the Alternate Judge may
pose questions through the Presiding Judge, but there is no other
entitlement for an Alternate Judge to speak during courtproceedings.
See Rule 16 bis (B). Moreover, an Alternate Judge not have any say in
decisions of the Trial Chamber. He is obliged to be present during
deliberations off the Trial Chamber, but he is not entitled a vote
thereat. See Rule 16 bis (C). It follows that it was wrong for the
Alternate Judge, who has not been designated to replace a sitting Judge,
to offer an opinion, whether dissenting or concurring, on a judgement
of TrialChamber.

The behaviour of Judge Sow was referred by
the Council of Judges to a plenary meeting of the Judges of the Special
Court. We three Trial Chamber Judges abstained from voting at that
plenary.I will now read onto the record the resolution of the plenary.

'Resolution
on complaint by Trial Chamber II against Justice Malick Sow. The Judges
of the Special Court for Sierra Leone sitting on the 7th and 10th of
May, 2012, in the 17th plenary of Judges, pursuant to Rule 15 bis (B) of
the Rules of Procedure of Evidence of the Special Court which mandates
the Council of Judges who refer an allegation of unfitness of a Judge to
sit to the plenary if it determines that, one, the allegation is of a
serious nature, and two, that there appears to be a substantial basis
for same.Pursuant also to Rule 24(iii) of the Rules, which provides
that the Judges shall meet in plenary to decide upon matters relating to
the internal functioning of the Chambers and the Special Court, seized
of the complaint by the Judges of Trial Chamber II, dated 26th of April,
2012, against Justice Malick Sow, Alternate Judge, considering the
response of Justice Malick Sow, dated the 1st of May, 2012, to the
complaint, having also considered the views and recommendations of the
Judges on the matter and the response of Justice Malick Sow to those
viewspursuant to Rule 15 bis (C) have reached the following conclusions:

1.
The plenary declares that Justice Malick Sow's behaviour in court on
the 26th of April, 2012, amounts to misconduct rendering him unfit to
sit as an Alternate Judge of the Special Court.2. The plenary
recommends to the appointing authority pursuant to Rule 15 bis (B) to
decide upon the further status of Justice Malick Sow.3. Pursuant to
Rule 24(iii), the plenary directs Justice Malick Sow to refrain from
further sitting in the proceedings pending a decision from the
appointing authority.

Done in Freetown, Sierra Leone, this 10th day of May, 2012, for and on behalf of the plenary, signed by the President JusticeJon Kamanda.

Earlier this week, the full judgment in the
Charles Taylor case was issued. It runs to more than 2,500 pages – something
that earns it a place in the Guinness Book of World Records – and I hope
readers of the blog will understand if a detailed analysis is not yet
forthcoming. But there is something puzzling on page 1 of the final judgment.
The name of Judge Malik Sow is missing.

Judge Sow served throughout the trial as an
Alternate Judge. Rule 16bis, entitled Alternate Judges, says ‘An
alternate Judge … shall be present at each stage of the trial or appeal to
which he or she has been designated.’ The sentencing hearing was part of the
trial.

Judges at the Special Court for Sierra Leone are appointed
either by the Secretary-General of the United Nations or by the Government of
Sierra Leone. Judge Sow was appointed by the Secretary-General. He was present
throughout the Trial and for the delivery of the judgment on 26 April 2012. His
name appears on the summary of the judgment, which was distributed on 26 April
2012.

When the judgment was first issued in
summary form, a few weeks ago, Judge Sow made a public objection which is discussed in
an earlier post on the blog.

But apparently he was not present when the
sentencing hearing took place last week. There is nothing on the website of the
Court that I could find to explain this. I was told, informally, that the
Plenary of the Court, composed of all of the judges, issued a decision removing
him from case. This week's full judgment is supposed to include a 'Procedural History' as an annex, and surely that is where such a development must be explained. But it is missing from the full version of the judgment that was distributed.

Can readers of the blog assist in
clarifying the procedure, and the legality, of removing a judge while a case is
in progress?

Judge Sow still appears on the website
as a judge of the Court. I don't believe he has been removed from office. In any case, I think that can only be done by the Secretary-General of the United Nations.

The Rules of Procedure and Evidence says a
judge may not sit in a case ‘in which his impartiality might reasonably be
doubted on any substantial ground’ (Rule 15). But from what I understand of the
events in the courtroom on 26 April 2012 this is not the problem. Nothing Judge
Sow said that day suggests a lack of impartiality.

It is also possible for a judge to be
deemed ‘unfit to sit’ (Rule 15bis). It provides for a rather complex procedure
involving referral by the President to the Council of Judges who then refer the
matter to the Plenary Meeting which makes a recommendation to the body which
appointed the judge. But this is really a procedure for removal from office, it
seems. And presumably Judge Sow has not been removed from office. So should he not have
been in the courtroom for the sentencing hearing, and should his name not have
appeared on the judgment? How can a judge be part of a summary of a judgment
yet absent from the judgment itself?

There may be a good explanation for all of this. It should be public. It is not good for international justice that such develops as removal of a judge from a trial be cloaked in mystery.

The occasion for Moyn’s article is the
release of Chinese activist Chen Guangcheng a few days ago. Professor Moyn mentions Peng-Chun Chang because he uses the recent events to return
to the thesis he sets out in his book about the insignificance of the Universal
Declaration of Human Rights. Chang was the Chinese representative on the
Commission on Human Rights when the Universal Declaration was being drafted in
1947 and 1948. He has been described as one of the intellectual heavyweights of
the Commission at the time. His contributions to the drafting of the Universal
Declaration were enormous.

(On visits to China in recent years,
I’ve frequently referred to Chang as the person responsible for the vital Chinese contribution
to the Universal Declaration. Chinese colleagues often dismiss Chang as a
‘nationalist Chinese’ – as does Moyn, by the way – without recognizing that
Change was, at the time, the representative of ‘one China’. I think China
should today be proud of Chang and his role in the drafting of the Universal
Declaration.)

In today’s New York Times, Professor
Moyn repeats his unfortunate and rather simplistic analysis of the Universal
Declaration: ‘The 1948 Universal Declaration of Human Rights — which Peng-Chun
Chang, a representative of Nationalist China, helped draft — had virtually no
impact on world politics in its time.’ Professor Moyn says human rights did not
become a significant factor in international relations until the mid-1970s,
when the activities of Soviet dissidents, the election of Jimmy Carter, and the
award of the Nobel Peace Prize to Amnesty International transformed the
situation. He is dismissive of writers who have spoken of the importance of the
Declaration and of its drafters, like Mary Ann Glendon, Johannes Morsink, Elizabeth Borgwaldt and Paul Gordon Lauren, for being
‘celebratory’.

But one can acknowledge the significance of
the 1970s in terms of the development of international human rights without
denigrating the richness of the late 1940s. This is where Professor Moyn is in
error. He also suffers from the same celebratory fervour of those he criticizes in
failing to recognize the ambiguities of the 1970s.

His analysis is also a bit too
US-centric. It does not, for example, acknowledge the 1970s as a period when
human rights in Europe improved dramatically, and pulled ahead of the United
States, which was heading into the tailspin that led to Abu Ghraib and Guantanamo. Take as an example the issue of
capital punishment, still practised in France and Spain in the 1970s, at a time
when it had been abolished judicially in the United States. Europe went on to
universal abolition while the United States Supreme Court reversed itself and
reinstated the practice.

By focussing on the United States, as
he does, Professor Moyn also does not adequately assess the role of the ‘third
world’ in the development of modern human rights. There is a tendency – still
prevalent today – to view international human rights as a gift from the Global
North to the Global South, exported by modern day missionaries from the civilized to the
uncivilized.

But the history of human rights within the United Nations
indicates a very important role for the newly independent countries who joined
the organization in the 1960s and who set the elimination of apartheid at the
top of their agenda. At the time, Europe and America
were running interference for the racist regime in Pretoria, providing it
political, economic and moral support. Important breakthroughs in terms of the
legal clout of international human rights norms and institutions flowed from the
insistence of the ‘third world’ on dealing with this blight. The first efforts to pierce the veil of state sovereignty were about apartheid, and they were driven by the Global South.

The Universal Declaration of Human
Rights was produced in the ferment of the post-Second World War lawmaking
process. It was not alone. Other important legal developments took place,
including the adoption of the 1948 Genocide Convention and the 1949 Geneva
Conventions, not to mention the immense progress manifested in the Charter of
the United Nations itself, and the international trials at Nuremberg and Tokyo.

The Cold War intervened to prevent
further developments. That is not the fault of the Universal Declaration.
Indeed, the Declaration is like many legal instruments that are adopted in
periods of change and unrest. They are like seeds in a spring garden, and
require water and warmth to germinate and grow. That there is a period of
apparent dormancy until this process takes place does not mean that nothing is
going on. One could say the same about the fourteenth amendment to the United
States constitution, which was adopted in the aftermath of the Civil War but
which only delivered its promise in the 1950s and 1960s.

Samuel Moyn has very pertinent
observations about developments in human rights in the 1970s, but they do not
need to be premised on downgrading the importance of the Universal Declaration
of Human Rights and the period in which it was drafted. The 1940s were a period
of huge tension and contradiction. The world was struggling to bury a past
characterized by colonialism and global warfare. Out of this crucible emerged
developments of immense importance, including the Universal Declaration of
Human Rights. He should adopt a more nuanced and subtle understanding of the
development of human rights, one in which there is room for recognition of the
significance of both the 1940s and the 1970s.

For the sake of full disclosure, my current writing project
is a compilation of the drafting history of the Universal Declaration of Human Rights. The materials consist of more than a
million words. They are organized chronologically accompanied by annotations and
indexes that should make these relatively obscure materials much more
accessible to scholars. Within the coming weeks I expect to see page proofs of
this three-volume collection of the travaux
préparatoires of the Declaration. It is to be published by Cambridge
University Press early in 2013. The documents reveal the richness of the
debates, the significance of the text, and the inspired brilliance of many of
the Declaration’s drafters, including Eleanor Roosevelt and Peng-chun Chang.

Wednesday, 9 May 2012

Liechtenstein is the first State Party to the Rome Statute of the International Criminal Court to ratify the amendments incorporating the crime of genocide within the jurisdiction of the Court. Thirty such ratifications are required for the amendments to enter into force. In addition, the Assembly of States Parties will be required to adopt a resolution confirming the entry into force of the amendments. This cannot take place before 2017.This is a first step towards completing the process that began with adoption of the amendments at the Kampala Review Conference in June 2010.It is fitting that Leichtenstein be the first State Party to ratify, because its Permanent Representative to the United Nations, Ambassador Christian Weneweser, and his key aide, Stefan Barriga, played an indispensable role in the negotiation of the amendments. Together with German academic Claus Kress, Stefan recently published a collection of the drafting history of the aggression amendments.
Obtaining the remaining 29 ratifications is complicated by the fact that the NGO community, which did so much to promote ratification of the Statute itself, is dragging its heels. Hopefully the big NGOs will realize the mistake they made with their indifference to the aggression amendments. One way or another, however, there can be little doubt that the thirty ratifications will be obtained by 2017 and that the resolution of the Assembly of States Parties will be adopted without difficulty. Several States have already indicated that they will follow the example of Liechtenstein.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.